er ee a - a er ae Oo ie ie - _ CATCHWORDS ADMINISTRATIVE LAW - application for judicial review - prohibited immigrants - decision to deport taken by Delegate to Minister - whether breach of rules of naturai justice - whether rules of natural justice apply to decisions of this nature - whether Delegate took into account all the relevant facts - whether para. 5(1)(a) of Administrative Decisions (Judicial Review) Act imports a legal obligation to observe the rules of natural justice into Commonwealth law. Administrative Decisions (Judicial Review) Act 1977 para. 5(1)(a) Micration Act 1958, s. 18 RICHARD WAYNE SMITH. KATHLEEN SMITH & ASHLEY CAROLINE SMITH Vv. MINISTER OF STATE FOR THE DEPARTMENT OF IMMIGRATION & ETHNIC AFFAIRS and THE COMMONWEALTH OF AUSTRALIA NSW G91 of 1984 Bowen C.J., Lockhart and Sheppard JJ. SYDNEY 4 April 1984 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISTON JUDGES MAKING ORDERS: fo.) a wo Paar Oo Fh I! to a Pe ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA RICHARD WAYNE SMITH First Appellant KATHLEEN SMITH Second Appellant ASHLEY CAROLINE SMITH an infant, who brings this claim through her next friend and mothe: Third Appellant AND: THE HONOURABLE JOHN STEWART WEST Minister or State for the Department of Immigration and Ethnic Affairs and THE COMMONWEALTH OF AUSTRALIA Respondents ORDER BOWEN C.J., LOCKHART AND SHEPPARD oJ. WHERE MADE: SYDNEY DATE: 4 APRIL 1984 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellants pay to the respondents their costs cr the appeal. 3. The stay granted by the Hon. Mr. Justice Morling on i9 March 1984 terminate on 13 April 1384. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NO. G 91 of 1984 wee eww GENERAL DIVISION ON APDEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA RICHARD WAYNE SMITH First Appellant KATHLEEN SMITH Second Appellant ASHLEY CAROLINE SMITH an intant, who brings this claim through her next friend and mother Third Appellant AND: THE HONOURABLE JOHN STEWART WEST Minister of State for the Department of Immigration and Ethnic Affairs and THE COMMONWEALTH OF AUSTRALIA Respondents CORAM: Bowen C.J., Lockhart and Sheppara JJ. 4 April 1984 REASONS FCR JUDGMENT BOWEN C.J. Iwill ask Mr. Justice Lockhart to give the first judement. LOCKHART J, This is an appeal from a diudgment of a fudee of this Court (Morling J.) given on i4 March 1984 dismissing an application by the appellants, Richard Wayne Smith, Kathleen Smith and Ashlsy Caroline Smith under che Administrative Decisions (Judicial Review) Act 1977 (the "SJudiciai Review Act") for orders of review of decisions made by the Delegate or the Minister for Immigration and Ethnic Affairs to aeport Mr, and Mrs. Smith. Mr. and Mrs. Smith are husband and wife. They are United States citizens. They have three children, two of whom, a son, Brian, aged 9 and a daughter, Erin, aged six, are also Onited States citizens. The third child is the third appellant. She 1s a daughter, Ashley, wno is five months old. Mr. and Mrs. Smith entered Australla with their two older children on 18 January 1983. Mr. and Mrs. Smith were granted temporary entry permits to remain here for a period of six months. No further entry permits were granted to them. On the expiration of their entry permits they both became prohibited immigrants; sub-s. 7(3) of the Migration Act 1958. Soon after their arrivai in this country Mr. and Mre,. Smith committed criminal offences involving the fraudulent use of credit cards. My. Smith was arrested ain Sydney cn 3 Feporuary 1983, two weeks after entry into Australia, ana charged with an oflence involving deception. He was granted bail, but he breached ba:l by travelling to Melbourne where he and Mrs. Smith were convicted on 30 May 1983 of 'four charges involving a re ee —e ee Ww . iat fw - u a deception, attempted deception, and the sossession of passports. They were then extradited to Sydney where they were subsequently convicted of the offence of obtaining financial advantage by deception, and on 22 August 1983 each was sentenced to two years imprisonment. If he remains in Australia, Mr. Smith may face proceedings for extradition to Queensland relating to the alleged cpassing of certain cheques and another matter. At least two criminal charges are pending against Mrs. Smith in the United States of America. She was indicted in December 1982 on a charge of grand larceny, and warrants for her arrest were issued that month. There is evidence that upon her return to the United States she may be arrested. Whilst in custody Mrs. Smith gave pirth to her daughter, Ashley. She was released from custody on 27 February 1984. The children, Brian and Erin, were kept at the Junior Red Cross home at Randwick. The Delegate of the Minister made orders for the deportation of Mr. and Mrs. Smith on 30 September 1983. Mrs, Smith was described in a recital to the deportation order made against her as: "Kathleen Smith, also known as Karen Muller, aiso known as Karen Collison, also known as Karen Mulier Doli, ana by other aliases." ete le a ee ne - ee iid - She asserted to the Department of Immigration and Ethnic Affairs that one of the recited aliases had never been used by her. To remove any doubt concerning the validity of the deportation order the Delegate of the Minister made a fresh deportation order against Mrs. Smith on 16 November i983. On 2 March 1984 Mr. and Mrs. Smith and their daughter Ashley, suing by Mrs. Smith as her next friend. commenced proceedings in this Court under the Judicial Review Act to review the Delegate's decision to deport Mr. and Mrs. Smith. Two grounds were argued before the learned primary Judge to support the claim that the deportation orders are invalid. The first ground was that a breach of the rules of natural justice was said to have occurred in connection with the making of the deportation orders. His Honour found that this ground of attack failed for two reasons. Tirst, because in his view it is now settled law in Austrailia that the rules of natural justice do not apply to the exercise of the vower under s. i8 of the Migration Act to deport a prohibited immigrant. His Honour discussed the judgments of the tiagh Court in Saiem: v. MacKeilar (No. 2) (1977) 137 C.L.R. 396; and The Queen v. MacKellar: Ex Parte Ratu (1977) 137 C.L.R. 461: and che judgment of a Ful I Court of thas Court in Minister for tmmicration and Echn Atfairs v. Haji-Isma2l (1982) 40 A.L.R. 341, ee ee ee Le eae eee ee ee er Ht re - - --- Secondly, his Honour found that, had he held a different view on the first question, he would have been of the opinion that the Minister's Delegate did in fact observe the cules of natural justice in this case. His Honour said, in his reasons for judament: "There is much authority for the proposition that what 13 required bv rules of natural justice, wnen they are applicable, is that the decision-maker should act fairly. What is fair will vary from case to case.' After a reference to Salemi's Case, his Honour continued: "On the facts of this case the Minister's delegate ensured that both applicants were interviewed before he made his decision. Not only were they interviewed, but statements were obtained from then. Further, a letter from their solicitor was before the delegate when he made his decision. In addition, yet another letter from the male applicant was before him, in which Mr. Smith pressed the Minister to deport hin. In these circumstances it 1s difficult to see how any attack can be made on the fairness with which the Minister considered whether he shouid make the deportation orders. Therefore, even 1f I nad been of the opinion that the rules of natural justice had applied, I would have found that those rules had been observed." Notwithstanding the full and careful argument that we have heard from counsel for the appellants in this appeal, in my opinion the rules of natural justice were not required to be observed in relation to the deportation orders made by the Minister's Delegate against Mr. and Mrs. Smith under s. 18. Even if I took the view, which I do net. that the ruies of natural justice did apply in this case, I would agree with tne ee - - ane meee eee se o>) conclusion of the orimary Judge that they were in fact observed. The second ground argued before Morling J. was that the making of the deportation orders was an improper exercise of the power conferred oy s. 18 because the Minister's Delegate failed to take into account the fact that the child, Asnley, having been born in Australia, was an Australian citizen, and Taried to take into account her welfare. His Honour rejected this argument and said: "T have referred aiready to the contents of the report that the delegate had before him and to Mr. Terracini's able argument that the report did not in terms refer to the fact that the child had been born in Australia and was therefore an Australian citizen. But for the reasons which I have already given I am satisfied that the delegate did not ignore the fact that the child had been born in Australia. On the contrary, I am satisfied he must have taken that circumstance into consideration. Further, I am not persuaded that the Minister's delegate failed to take into account the welfare of the child. Indeed, there 13 much to indicate that ne was concerned about the welfare of both the five months oid child and also the two oider chiidren. Reference 1s made in the departmental officer's report to steps taken to place the two elder children in the care of a charitable organization. No doubt the fact that no special veference is made to the care of the infant child was occasioned by a knowledge that she was only two weeks old and in the care of her mother. Indeed, it 1s said in the report that Mrs. Smith was in a nali-way house, having been discharged from Muliawa Detention Centre prior to the birth of her child. It is clear to me that the delegate did have in front of him, and did consider, many matters concerning the welfare of the child." Those findings of his Honour were shallengea pdefore us. a rs er ee ee ee wwe ee . -- I am satisfied thac his Honour did not fail into error in expressing those views and in rejecting this second ground of attack on the deportation orders. I agree with the primary Judge that the Minister's Delegate must have had regard to the fact that the child, Ashley, was born in Australia and that she is an Australian citizen. Although no specific reference is made in the Departmental report to the Delegate to the fact that she is an Australian citizen, reference is made twice to the fact that she was born here. I do not accept that the Delegate did not place any, or sufficient. emphasis on the fact that she was an Australian citizen and that he did not have regard to that fact when making his decision to deport. As has been said by Judges of this Court more than once, it is not legitimate to scrutinise reasons for decisions of government officers too finely or precisely. Such reasons should be studied carefully but sensibly, and not zealously in the pursuit of error. I would add that I have, myself, taken into account, in considering this appeal, the fact that the child, Ashley, was born in this country and is an Australian citizen. Her rights, interests and prospects may be affected by the - deportation of her parents, but I have no doubt that this consideration was present to the mind of the Delegate and his Honour. It is a matter which must be considered and weighed together with all other relevant considerations in the case, as I have no doubt it was. es eee - ew we we ~~ Finally, I would refer to an argument advanced by counsel for the appellants based upon ovdara. 5(1)(a) of the Judicial Review Act which relevantly vorovides: "S(1) A person who is aggrieved by a decision to which this Act applies 'that is made after the commencement or this Act may apply co the Court for an order of review in respect of the decision on any one or more of the following grounds:- (a) that a breach of the rules of naturai justice eccurred in connection with the. making of the decision." A similar provision exists in para. 6(1)(a) of the Judicial Review Act relating to the review of conduct itself related to the making of decisions. The submission was that para. 3(1)(a) itself imports into other Commonwealth law, including statutes, a requirement that the rules of natural justice must be observed in connection with the making of relevant decisions, and that the paragraph itself is a source of that legai obligation. I reject this argument. A breach of the rules of natural justice 183 a condition vorecedent to the right of a person aggrieved by a decision to which the Judicial Review Act axcplies to seek an order of review from this Court. It does not import the far reaching requirement contended for by counsel for the appellants. The content of the rules of natural justice 13 to be Found cutside the Judicial Review Act. ft 15 a statute designed £o correct grievances arising from decisions maae under Commonwealth enactments whicn are many and diverse. Generaily, ae et ee wee ee ee ee -- — ee ee the rules of natural justice are found, not in Commonweaith legislation itself, but in the body of judgments of the courts developed over many years here and in the United Kingdom. Paragraph 5(1)(a) does not disturb the content of those rules; rather it assumes them and gives remedies to persons aggrieved if they are breached. I would dismiss the appeal with costs. BOWEN C.d.: I agree. SHEPPARD J.: I also agree. I only wish to adda word about natural justice. As I understood the, argument for the appellants, it was that they were entitled to natural justice because they had a legitimate expectation that they would not be deported unless they were afforded an opportunity of being fully heard by the Minister. In my opinion, there is no evidence in this case which would warrant the conclusion that they were entitled to such a legitimate expectation. The law in relation to that matter was recently discussed by a Full Court of this Court in Cole v. Cunningham (1983) 49 A.L.R. 123. In that case, both the Hai-ismail Case, referred to by Lockhart J., and the decision of the Privy Council in Attorney-General of Hong Kong v. Na Yuen Shiu £1983] 2 W.L-.R. 735 were considered. Those cases were relied upon by counsei for the appellants in the present case; but in my view this case is a case of an entirely different kind. I agree that the appeal should be dismissed. a ae ee ee 10. BOWEN C.J.: The order of the Court will be that the appeal be dismissed with costs. It 1s further ordered that the stay which was granted by Moriing J. on 19 March 1984 will terminate cn 13 April 1984. | certify that this and the preceding pages are a true Copy of the r judgment herein of the Court Gu fogs 7 Associate easons for